that the total cost of said building shall not exceed four million dollars, exclusive of appropriations heretofore made."

The particular provision referred to is that "all loss or damage occasioned thereby, or arising under said contracts, together with the value of the plan for a library building submitted to the joint select committee on additional accommodations for the library of congress by John L. Smithmeyer, in the Itallan renaissance style of architecture, may be adjusted and determined by the secretary of the interior, to be paid out of the sums heretofore or hereby appropriated."

It is contended for the United States that the word "may," in such provision, means

rent is usually about 50 per cent. of the gross receipts of an architect's business, and that the cost of plans and specifications in the office of the surpervising architect of the treasury is about 2% per cent. of the cost of the building; but it has not been shown what were the expenditures of the claimants during the 12 years above mentioned, further than that their office rent was $600 per annum, and that they ordinarily employed a number of clerks and draughtsmen, whose compensation respectively ranged from $2 a day to $10 a day.

12. Immediately after the enactment of the act of 8th of June, 1880, the joint select committee therein named selected Edward Clark, Alexander R. Esty, and the claimant John L. Smithmeyer as the three suitable persons contemplated by that act to determine whether it was practicable and beneficial to provide additional library space in the capitol, or preferable to erect a separate building. The claimant's appointment was in the following

words:

"Rooms of the Joint Select Committee on Additional Accommodations for the Library of Congress, Washington, D. C., June 17, 1880. John L. Smithmeyer, Esq., Washington, D. C.-Sir: The joint select committee contemplated by the act of congress approved June 8, 1880, (a copy of which you will find inclosed,) being duly organized, have directed me to notify you that you have been selected as one of the three persons of suitable skill and attainments' provided for in said act, to consider the questions therein named. In making this communication to you, the committee desire to call your attention to the provisions of the first section, relating to the examination of the capitol building. This examination will be made in connection with your associates, Mr. Edward Clark, architect of the capitol, and Mr. Alexander R. Esty, of Boston. It is not deemed necessary further to point out your duty in connection with the first section of said act, except to call your attention to the last sentence of the same. You will observe that provision is there made for a comparative examination and estimate of the advantages between library accommodations connected with the capitol and the erection of a separate building for that purpose. The object of the act is to empower three persons of suitable skill and attainments' on the subject of architecture to determine whether it is practicable and beneficial' to provide additional accommodations for the library in connection with the capitol building, or whether it is preferable to go elsewhere and erect a separate building. If you and your associates find adversely to the idea of building on the present capitol, then the committee desire you, and each of you, to submit plans, specifications, and estimates for a building at some eligible point in the city, disconnected from the capitol. In doing this the committee would advise that what is known as 'Judiciary Square,' and also the ground cast of the present capitol ground, be taken into consideration; but in designating these points the committee do not intend to be understood as excluding from

"shall;" that the secretary of the interior was thus constituted a special tribunal to adjust and determine the equitable right of Mr. Smithmeyer for the value of his plan; that the secretary of the interior never had an opportunity to make payment for the plan, as, according to finding 14, the claimants did not submit any demand to him for an adjustment and determination under the act of October 2, 1888; and that neither the court of claims nor this court has any jurisdiction in the premises. It is contended that the act referred the claim to the secretary of the interior as a special tribunal, with exclusive power, not only to make an award, but also to pay its amount.

your consideration other eligible sites that may occur to you. If a new building should be decided on, it is the judgment of the committee that it should be not less than four hundred and fifty (450) feet in length and three hundred (300) feet in width; that it should be constructed of material as durable as the two wings of the capitol; and that the interior should be brick, iron, or other material as nearly fire-proof as possible. As to the interior arrangement, and the practicability of its future extension and improvement, it is the desire of the committee that you consult with the librarian of congress. It is proper in this connection to call your attention especially to that part of section 1 which looks to the improvement of the legislative halls,' the convenience of communication between them,' 'their better ventilation, light, and exposure to the open air.' That subject you will consider in connection, however, with the primary purpose of this legislation, which is to provide a structure for the better accommodation of the library of congress, and for its future wants. The committee earnestly hope that you and your associates will be able to meet at an early day, and proceed with the duties pointed out in this act. They hope to receive a preliminary report from you, if possible, as early as the 1st of October next, and it is their expectation that they will have such reports from you as will enable them to report to congress upon its meeting in December next. committee have designated Mr. Edward Clark, architect of the capitol, to act as chairman of the board when in consultation. Very respectfully yours, &c., D. W. Voorhees, Chairman."

The

After receiving such appointment, the claimant Smithmeyer entered upon and performed the duties therein indicated, both with regard to the adaptation of the capitol to the purposes of a library and with regard to a separate building. In the discharge of these duties he produced, at the request of the joint select committee, in 1880, a plan or plans for the alteration and enlargement of the capitol, and a plan for a building to be erected on Judiciary Square, and likewise the plan or plans described in finding 4, subd. 8, for a separate building. The latter plan or plans had inscribed upon them the name of Smithmeyer & Pelz, the claimants' firm name, and were prepared by the firm, and at its cost, but were delivered to the committee by the claimant Smithmeyer, and the plan so delivered was the same adopted by and referred to in the Act 15th April, 1856, as "the plan submitted to the joint select committee on additional accommodations for the library of congress by John L. Smithmeyer." It was reported to congress by the committee on the 14th January, 1881, restudied, and greatly improved by the claimants, and was afterwards modified at the request of the committee, as set forth in paragraph (10) of finding 4.

No express contract or agreement was entered into by the committee and the claimant Smithmeyer, determining his compensation for his serv ices generally, or for preparing these specific plans; neither was any contract whatever entered

But this right of action accrued in 1886, and the court of claims from that time had full jurisdiction over it, under its general jurisdiction. The act of October 2, 1888, did not repeal, either expressly or by implication, the general jurisdictional act of the court of claims, to the extent of this case. The purport of the act of 1888 seems to have been to provide a method of adjusting the claim, if the claimants so desired, without a suit. The claimants had a right to the additional

into between the committee and the firm of Smithmeyer & Pelz.

13. The following statement sets forth all the payments made by the defendants to the claimants in and about the matter of preparing plans for a building for a congressional library, including a plan for the extension of the capitol. With the exception of the first item of $1,500, all the payments were made to Smithmeyer alone, for his individual services, under the provisions of the act of June 8, 1880.

Statement of Payments.

From the $5,000 appropriation of March 3, 1873, "for a plan for a new building for a library of congress," (17 St. p. 513:)

On December 29, 1873, "for one set of designs for a new building for the library of congress, the amount of the first premium".

From the appropriation of $8,000, made by the act of June 8, 1880, (21 St. p. 155,) and the act of March 3, 1881, (Id. 424,) to be expended by the joint select committee created by said act of June 8, 1880, for the purpose therein mentioned:" On August 10, 1880, "for services rendered the joint select committee to provide additional accommodations for the library of congress"

On October 23, 1880, "for services rendered and drawings submitted" for said committee...

On

— —, —, “for draughts of plans, etc., for library building". On February 26, 1881, "for ground plans, elevations, and perspective drawings of the capitol building, as illustrating the preliminary report on the subject of extending it"..

On March 30, 1881, for "professional services rendered".

$1,500 00

600 00

500 00

S02 00

650 00 650 00

On November 2, 1881, for "labor on plans, sections, etc. ".

500 00

On February 28, 1882, for "services rendered"

400 00

On June 29, 1882, for "professional services rendered, i. e. estimates, drawings, etc., etc.

500 00

On August 23, 1882, for "professional services up to date".

On January 20, 1883, for "services rendered as professional expert". On January 4, 1883, for "drawings, photographs, copies of plans, and books purchased from C. Pulman, Esq., custodian of British Museum",

Total as above.....

800 00 955 00

40 88 $7,897 88

14. The claimants have not submitted any demand to the secretary of the interior, under the provisions of the act of October 2, 1888, above cited, for adjustment and determination; nor have they, or either of them, made any claim to the executive department in regard to any matter alleged in their petition looking to the payment of the fees or compensation demanded in this suit.

15. Since October, 1856, the library building has

method, but they could also waive its benefit. The general jurisdiction of the court of claims, and the additional method of adjustment, can both of them well stand together. De Groot v. U. S., 5 Wall. 419, 432; Gordon v. U. S., 7 Wall. 188; Henderson's Tobacco, 11 Wall. 652; Shutte v. Thompson, 15 Wall. 151; Bechtel v. U. S., 101 U. S. 597; Campbell v. U S., 107 U. S. 407, 2 Sup. Ct. Rep. 759; Chew Heong v. U. S., 112 U. S. 536, 5 Sup. Ct. Rep. 255; U. S. v. Great Falls

been, and still is, in process of construction according to the plan designated by the Act 15th April, 1886, modified by the Act 2d March, 1889, as is more fully set forth in the preceding findings.

16. The court finds the fair and reasonable value of the claimants' services in preparing the plans delivered to the joint select committee and reported to congress on the 14th of January, 1881, and which are now being used by the government in the construction of a library building, to be ($48,000) forty-eight thousand dollars.

Additional Findings of Fact.

1. From the passage of the act of 15th April, 1886, until October 1, 1886, neither of the claimants were in any way in the employ of the defendants.

At this time the claimant Smithmeyer was employed. The following letter shows the extent of his employment:

Washington, D. C., April 19, 1857. John L. Smithmeyer, Esq.-Dear Sir: At a meeting of the commission held on Friday, October 1, 1886, you were appointed architect of the building for the accommodation of [the library of?] congress, at a compensation of $5,000 per annum. Respectfully, L. Q. C. Lamar, Sect. of the Interior and Chairman Cong. Library Commission."

Subsequently, and on the 13th day of November, 1886, the commission employed the claimant Pelz as principal draughtsman of the building, and agreed to pay him $3,000 per annum.

The claimants were not employed as a firm, and neither had any interest in the employment of the other, or in the services to be rendered by the other, or in the compensation to be paid for such services. Their employment related solely to service to be rendered by them in the future construction of the building, and no other.

2. Subsequently to the act of April 15, 1886, the defendants paid for the services of draughtsmen, computers, modelers, and experts of every kind, and also all expense for stationery, instruments, clerk hire, office rent, fuel, gas, and all other nec. essary expense which might be connected with an architect's office, and none of such service or expense was paid by claimants or either of them. From April, 1886, to the 30th of April, 1888, the commissioners paid for such expense the sum of $33,503.29.

3. The acceptance of the salaries by Smithmeyer and by Pelz were the only acts, as far as appears, done by them, or either of them, or agreements, express or implied, between them and the defendants or the commissioners, relative to their compensation as architects, either for preparing the plans or superintending the work.

4. In determining the value of claimants' services in preparing the plans accepted by the defendants, and adopted by them, and used by them in the construction of the library building, no allowance has been made for service rendered after the 14th day of January, 1881, in restudying and improving such plans, or in preparing the new designs for the exterior of said building, as set forth in paragraph (10) of finding 4, and in the last paragraph of finding 12.

5. In fixing $48,000 as the fair and reasonable value of claimants' services in preparing said plans, accepted and adopted by the defendant, no allowance has been made for the expenses of the architect's office.

Manuf'g Co., 112 U. S. 645, 5 Sup. Ct. Rep. 306; U. S. v. Harmon, 147 U. S., infra.

The contention on the part of the claimants is that the value of their plans or services ought not to be estimated according to the rule of quantum meruit, but that they ought to be paid according to the rates established by the general usage of the architects' profession throughout the United States. On the evidence, the court of claims, by finding 16, found the fair and reasonable value of the services of the claimants, in preparing the plans delivered to the joint select committee, reported to congress on January 14, 1881, and which are now used by the government in the construction of the library building, to be $48,000. This was a finding on the evidence. The evidence is not before us, and, without it, we are asked, on findings of facts as to work done in connection with plans which were not adopted, to reverse the judgment of the court of claims as to the reasonable value of the plans which were adopted, and for which alone the right to compensation exists.

It appears from the findings of the court of claims that no contract, express or implied, was entered into with the claimants, or either of them, by any commission, committee, or public officer empowered to adopt plans, or employ architects, or to enter upon the construction of the building, until Act April 15, 1886, c. 50, (24 St. p. 12,) referred to in finding 8, was passed, which adopted the plan of Smithmeyer. The act did not constitute a contract, but only declared the intention of the legislature. It might have been rescinded at any subsequent time before the claimants changed their position and entered upon the performance of the proposed work, without either party becoming liable to the other. Tilley v. County of Cook, 103 U. S. 155, 160, 161. From 1873 to 1886 the services of the claimants were of an advisory nature, for compensation, and were such services as are mentioned in the statement of payments in finding 13 as "professional services."

As found in finding 11, the commission created by the act of April 15, 1886, (24 St. p. 12,) appointed Smithmeyer, on October 1, 1886, to be architect of the library building, at a compensation of $5,000 per annum; and on November 13, 1886, it also appointed the claimant Pelz to be principal draughtsman, at a compensation of $3,000 per annum; both appointments being in writing. Mr. Smithmeyer continued in the service of the United States, as architect of the building, until October 3, 1888, a period of over two years. It is further found in finding 11 that the claimants, at the time of accepting those appointments, did not notify congress or the commission that they intended to charge according to the schedule of the American Institute of Architects for the plans furnished; nor did they so notify congress or the commission before the work began on the build

ing under the act of April 15, 1886, although they had previously notified the chairman of the joint select committee that they intended to charge for plans.

The acceptance by the claimants of employment at an agreed compensation per annum, before either party had acted on the faith of a different understanding, leaves no room for implying any other contract or usage. There was an express contract by which the claimants, as architects, were under the duty of furnishing plans at the agreed compensation.

In the opinion given by the court of claims it is stated that the court was of opinion that the acts of the parties indicated that the services of the claimants should be estimated according to the rule of quantum meruit, and not according to the schedule of charges, of the American Institute of Architects; that, instead of a percentage, the United States* elected to give, and the claimants consented to take, two annual salaries amounting to $8,000 a year, as an equivalent for such percentage; that, as the claimants thus departed from the general rule of architects, of measuring their compensation by the customary fees of their profession, and did so without any express agreement or reservation as to the preceding part of their service, the court was of the opinion that such part should be estimated according to the same rule, which the parties had themselves adopted; and that, taking those facts of mutual acquiescence as elements for computing damages, bearing in mind that a period of about six years existed between October, 1874, when the claimants began to give their entire time to what may be termed the evolution of their plans, and January 14, 1881, when the plans were submitted to congress, and remembering also that one of the claimants had received from the government, for other professional services connected with the library, the sum of $4,600, the court found as the value of perfecting the design and preparing the plans a like equivalent of six years' service at $8,000 a year, and fixed the damages at $48,000. This we consider a proper and reasonable decision.

Judgment affirmed.

(147 U. S. 268) UNITED STATES v. HARMON. (January 16, 1893.) No. 649.

CLAIMS AGAINST THE UNITED STATES-MARSHALS' FEES-MILEAGE-SERVING WRITS-TRANSPORTATION OF PRISONERS.

1. The disallowance by the first comptroller of the treasury of a marshal's account for fees is not such a rejection or adverse report "by a court, department, or commission," under the proviso of 24 St. at Large, p. 505, § 1, cl. 1, as to prevent a circuit court from taking jurisdic tion of a suit for the claim. 43 Fed. Rep. 560,

affirmed.

2. In the first circuit the marshal is entitled, under Rev. St. § 829, cl. 3, to a fee of two

dollars for distributing venires to the constables, according to the long-established practice in that circuit. 43 Fed. Rep. 560, affirmed.

3. A marshal is entitled to be reimbursed for money paid with the approval of the attorney general, to whom Rev. St. § 368, gives general supervisory power over the accounts of the court officers; the payment having been made on a requisition of the district_attorney for blanks necessary for his use. 43 Fed. Rep. 560, affirmed.

4. Under Rev. St. § 829, cl. 24, when the court adjourns over one or more days, the marshal may return home, and charge travel for going to attend the term at the day to which it is adjourned, and he may also charge travel for going to each special term. 43 Fed. Rep. 560, affirmed.

5. Under Rev. St. § 829, cl. 18, a marshal may charge two dollars a day for expenses in endeavoring to make an arrest when the services charged for were actually rendered, and the disbursements actually made.

6. Under Rev. St. § 829, cl. 25, where a marshal serves several precepts (not in behalf of the same person) against different persous. for different causes, he is entitled to full travel on each, though they are all served on the same trip. 43 Fed. Rep. 560, affirmed.

7. Act Cong. Feb. 22, 1875, c. 95, § 7, does not preclude a marshal from charging full mileage on each of two or more writs served at the same time and place on different persons, but applies only to cases in which there is no actual travel, as where a writ was sent through the mail to be served by a deputy near the place of service. 43 Fed. Rep. 560, affirmed.

8. The hire of hacks to transport prisoners to and from court being agreed to have been in accordance with the usual practice, and to have always before been allowed, it will be presumed to have been required by the court, for the prompt disnatch of business, and a marshal should be reimbursed for money so spent. Fed. Rep. 560, affirmed.

43

9. A circuit court, under the discretion given by 24 St. at Large, p. 508, § 15, on a petition by the marshal to recover fees and expenses against the United States, awarded $59.15 costs, "considering the frivolous and vexatious nature of the objections taken." On appeal the items of costs were not objected to, and did not appear in the record. Held, that the costs

must be assumed to have been taxed in accordance with the statute, which says that costs shall include only what was actually incurred for witnesses and fees paid to the clerk.

Appeal from the circuit court of the United States for the district of Maine.

At Law. Action by Charles B. Harmon against the United States to recover certain fees and disbursements due the plaintiff as United States marshal. Judgment was given for plaintiff. 43 Fed. Rep. 560. Defendant appeals. Affirmed.

Sol. Gen. Aldrich and Felix Brannigan, for the United States. E. M. Rand, for appellec.

*Mr. Justice BLATCHFORD delivered the opinion of the court.

This is a suit brought in the circuit court of the United States for the district of Maine, February 7, 1890, by Charles B. Harmon against the United States, under the act of March 3, 1887, c. 359, (24 St. p. 505,) to recover $1,770.60 as fees and disbursements of Harmon while marshal of the United States for that district, from March 9, 1886, to October 1, 1888, which were included in his account

presented to the district court, proved to its satisfaction by his oath, approved by it, forwarded to the first auditor of the treasury and by him to the first comptroller, and disallowed by the latter; the items of the same being set forth in detail in schedules annexed to the petition.

The United States, by a plea in the nature of nonassumpsit, put in issue the plaintiff's right to recover. The suit, under the requirement of section 2 of the act of 1887, was tried by the court without a jury.

There was filed the following admission in writing, signed by the district attorney of the United States: "In the above-entitled cause, it is admitted, on behalf of respondent, that the services charged in the petition and schedules were actually rendered; that the disbursements charged were actually made in lawful money; and that the sums charged as paid to witnesses were actually, and in every instance, paid upon orders issued in due form, either by court or a commissioner of the circuit court, in the respective cases."

The case, as now presented before us, involves only items numbered 2, 3, 4, 5, 6, and 9, discussed in the opinion of the circuit court.

There was filed, before the hearing, an "agreed statements of facts," signed by the attorneys for both parties, the only parts of which that it is important to recite being as follows:

"First. As to jurisdiction:

"That, of the total amount claimed by petltioner, items amounting to $140.32 were disallowed by the first comptroller prior to March 3, 1887.

"Second. As to the items claimed:

"That they are correctly classified and set forth in the abstract of schedules annexed to brief of petitioner.

"Third. As to the several classes of claims:" "2. Distributing venires, marshal's fees, $186. "That, if the marshal is entitled to a fee of $2 for each venire distributed to the several constables, he is entitled to the amount claimed; but it is claimed by respondent that said amount was erroneously charged in the marshal's account as mileage, and was for that reason disallowed by the comptroller.

"3. Paid for blanks for United States attorney, $14.

"That upon requisition of the United States attorney, approved by the attorney general, this amount was paid by the marshal for blank indictments and informations for the necessary use of the United States attorney. That a similar charge has since been allowed by the comptroller.

"4. Marshal's travel to attend court, $156.60. "That, of the amount claimed, $118.80 is for travel to attend regular terms of the circuit and district courts, and that one travel, $1.80, has been allowed and paid to the marshal for travel at each of said terms.

"That said $118.80 is charged for travel on days when said courts were held by adjourn

ment over an intervening day, and were not held on consecutive days.

"That the remaining sum of $37.80 is charged for travel to attend 21 special courts or special terms of the district court. That the docket of the district court shows that said 21 special courts or special terms were duly held.

*"5. Expenses endeavoring to arrest, $4.

"That this charge for two days at $2 was disallowed by the first comptroller solely because he claimed it was not charged in the proper account.

"6. Travel to serve precepts, $237.60.

"That in some instances the officer had in his hands for service several precepts against different persons for different causes, and made service of two or more of such precepts in the course of one trip, making but one travel to the most remote point of service, but charging full travel on each precept. following item, viz.:

The

""1886, April 24. In U. S. v. Jeffrey Gerroir, travel to serve subpoena from circuit court, Massachusetts district, at Cranberry Isle, 314 miles, $18.84,'

"-is suspended by comptroller because the only actual travel was from Portland to Cranberry Isle, say 206 miles. If travel, as charged, is not to be allowed, then this charge should be for 206 miles, $12.36. That in serving a warrant of removal, (in every instance within this district,) or warrant to commit, the marshal has charged travel, while the comptroller claims that, transportation of officer and prisoner being allowed, no travel can be charged."

"9. Transporting prisoners to and from court, $78.

"That this amount was actually paid for hack hire, in accordance with the usual prac tice, and that the charge had always before been allowed. The comptroller ciains that the amount was excessive, and the use of hacks unnecessary."

"Fourth. As to the allegations in the petition:

"That the marshal duly rendered his accounts as stated, and that the same were duly presented to the court, and approved and forwarded to the accounting officer of the treasury, as alleged."

The case was tried before Mr. Justice Gray and Judge Colt, Circuit Judge, and the opin ion of the court was given by Mr. Justice Gray. 43 Fed. Rep. 560. The court found for the petitioner for the whole of his claim except $6.48, and rendered judgment in his favor for $1,764.12 and $59.15 costs. It also, in pursuance of section 7 of the act of 1887, specifically found the facts of the case to be as so admitted and agreed. The United States, within six months, filed a petition alleging errors and praying an appeal, which was allowed.

A material question in the case is whether the circuit court had jurisdiction to pass upon

those items of the claim, amounting to $140.32, which were disallowed by the first comp troller before March 3, 1887. By section 2 of the act of that date, the circuit and district courts of the United States are vested with concurrent jurisdiction (within certain limits as to amount) of all matters which, by section 1 of the act, "the court of claims shall have jurisdiction to hear and determine," including "all claims founded upon the constitution of the United States or any law of congress, except for pensions, or upon any regulation of an executive department, or upon any contract, expressed or implied, with the government of the United States, or for damages, liquidated or unliquidated, in cases not sounding in tort, in respect of which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if the United States were suable: provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims growing out of the late civil war, and commonly known as 'war claims,' or to hear and determine other claims which have heretofore been rejected, or reported on adversely, by any court, department, or commission authorized to hear and determine the same.'

The question is whether claims disallowed by the first comptroller prior to March 3, 1887, were claims which, under section 1 of the act of that date, had been, prior to its passage, "rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same."

It is contended for the United States that except where congress, by special law, empowers some court or executive officer to hear and determine a claim against the United States, the accounting officers of the treas ury department alone have the power to hear and determine it; that, under section 236 of the Revised Statutes, "all claims and demands,, whether by the United States or against them, and all accounts whatever in which the United States are concerned, either as debtors or as creditors, shall be settled and adjusted in the department of the treasury;" that, as to marshals' accounts, their settlement and adjustment belong to the first auditor and the first comptroller alone, under sections 269 and 277 of the Revised Statutes; that, prior to the act of 1887, the only remedies existing in favor of marshals, as against the action of the accounting officers, were, in proper cases, by set-off in the circuit or district courts, or by suits in the court of claims; that prior to the establishment of the court of claims the settlement and adjustment of accounts by the accounting officers of the treasury department, and their final action on claims and accounts, were regarded by all the departments of the government as a final determination, adjustment, and adjudication of the claims and accounts so passed upon; that